Copyright's Male Gaze: Authorship and Inequality in a Panoptic World

Abstract

When Erin Andrews found out that an intimate recording of her had leaked online, the authorship-as-fixation doctrine told her that the felon who illicitly captured the footage owned the copyright, not her. When Lynn Thomson’s creative partner, Jonathan Larson, died tragically just hours after the final rehearsal for the musical Rent, joint authorship’s mutual-intent requirement told her that she had no copyright interest in the Broadway hit. When The Fearless Girl took on Charging Bull and challenged its unabashedly masculine celebration of American capitalism by calling attention to the underrepresentation of women on Wall Street, copyright law told her that she might constitute an unauthorized derivative work, both without copyright protection (i.e., no cognizable authorship) and subject to destruction. In all three of these scenarios, the legal meaning of authorship had far-reaching consequences — not just for copyright law itself, but for society at large.

This Article examines how the heuristics of authorship — the relationship of fixation to authorship, the role of intention in joint authorship, and the allocation of authorship in derivative works — have imbued rightsholders with the power to control representations of female (and nonwhite) bodies and to suppress narratives of resistance, with resulting adverse consequences for egalitarian and dignity interests. In the process, the Article not only adds to a burgeoning literature on the impact of copyright’s ostensibly neutral principles on inequality, particularly in relation to gender, but also breaks new ground by applying film theorist Laura Mulvey’s concept of the male gaze to the operation of copyright law. In examining a wide range of cases, from revenge porn and celebrity sex tapes to the voyeuristic art of Arne Svenson, the analysis demonstrates just how our reigning authorship regime has reified the male gaze and translated it into a property right rationalized along traditional binaries of activity and passivity, object and subject, male and female. All told, the Article calls for a broader conversation about the ways in which courts determine issues of authorship — not just as a matter of doctrinal consistency with copyright’s four corners, but also as a vital matter of public policy in a society where the tools of creation and surveillance are at everyone’s fingertips.

Tehranian, John, Copyright's Male Gaze: Authorship and Inequality in a Panoptic World (June 1, 2018). Harvard Journal of Law and Gender, Vol. 41, 2018. Available at SSRN: https://ssrn.com/abstract=3005920

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